PRATAP MOHANBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal arises out of the judgment and order rendered by the learned Additional Sessions Judge, Ahmedabad Rural, on 2/5/1997 in Sessions Case No.29 of 1994, convicting the appellant for the offences punishable under Sections 302 and 201 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default of which to undergo simple imprisonment for one year for offence punishable under Section 302 of Indian Penal Code, and was further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2,000/-, in default of which to undergo simple imprisonment for a period of six months for the offence punishable under Section 201 of the Indian Penal Code. Both the sentences were ordered to run concurrently and the accused was ordered to be given benefit of set of.

(2.) The appellant is alleged to have murdered his wife-Manjula on 22/1/1993 by causing injuries on her head with an iron pestle at about 3:00 p.m. in the afternoon. It is also alleged that after the incident, the appellant tried to destroy the evidence by setting the dead body of Manjula ablaze. The appellant is thus alleged to have committed offence punishable under Sections 302 and 201 of the Indian Penal Code. As per the prosecution case, the incident was witnessed by Bhima Arvindbhai, who is a child witness. Bhima happens to be the son of the brother of the deceased. The incident occurred in the house of the appellant at Village Arnej of Taluka Dholka. As per the prosecution case, the appellant and the deceased were married about eight months prior to the date of the incident and were staying together. It transpires that the deceased had made some complaint about the appellant being in habit of gambling. Lastly, when the deceased had gone to her parental house, she had also taken with her brother's son-Bhima to her marital home. On the day of the incident, the appellant had started for his work in the morning as usual. In the afternoon the deceased and her brother's son aged about 8 years were at home. Around 3:00 p.m. in the afternopn, the appellant came home. It appears that he had a quarrel with the deceased and the appellant gave pestle blows on head of the deceased causing two independent distinct injuries of serious nature resulting in her death. This was witnessed by Bhima. He ran away from the place. It appears that after the incident, an occurrence report was filed with Police at Bagodara by grandmother of the appellant; wherein she indicated that her grandson had gone out on the day of incident and she was at the house alongwith deceased-Manjulaben. In the afternoon, she went to the bore well for washing clothes and when she returned at about 3:00 p.m., she found that the door to the house was ajar and deceased- Manjulaben was lying burnt and beside her; a primus was lying. She, therefore. immediately went to the Sarpanch-Narubhai and informed him that for some unknown reasons Manjula had set herself ablaze. Sarpanch had sent her to the Police and therefore, the information. However, father of the deceased-Bholabhai Bhagvanbhai on receiving the message about Manjula having been sustained burns injuries started from Junagadh and reached Dholka and learnt that Manjula had already expired. From there he went to Arnej and was informed that the dead body was lying at the Government Hospital at Bavla. He lodged the F.I.R. with Police alleging that the appellant had murdered the deceased by causing injuries on her head and had thereafter set her ablaze by pouring kerosene over the dead body. On basis of said F.I.R., the investigation was made and charge-sheet was filed in the Court of J.M.F.C., Dholka. Since the offences alleged against the appellant were triable exclusively by the Court of Sessions, learned J.M.F.C., Dholka committed the case to the Court of Sessions at Ahmedabad and Sessions Case No.29 of 1994 came to be registered.

(3.) Learned Advocate, Ms.Shah, for the appellant submitted that the learned trial Judge has committed an error in appreciating the evidence. According to Ms.Shah, the prosecution case hangs on solitary oral evidence of child witness-Bhima. The deposition of child witness, if seen, would indicate that he was too young to depose and his conduct at the time of incident also indicated that what he says is not wholly reliable. According to Ms.Shah, when the prosecution case hangs on such a scanty piece of evidence, the trial Court could not have recorded conviction.